The Kirbys and Marvel Reach a Settlement

Wow.

Marvel and the family of Jack Kirby have amicably resolved their legal disputes, and are looking forward to advancing their shared goal of honoring Mr. Kirby’s significant role in Marvel’s history.

Two days ago, on Friday, September 26, Marvel Entertainment and the Kirby estate jointly released the above statement—which is the sum total of what we know about a last-minute legal settlement, reached just days before the Supreme Court of the United States was slated to consider the Marvel v. Kirby case in private conference.

This is a startling piece of news for those who care about comics and about Kirby. I could feel my own pulse racing—literally, I’m not being hyperbolic—when I first read the news.

What the settlement may mean remains a matter of guesswork and hope. If it works for the Kirby family, though, then the news is good. My hope is that the Kirby family will gain security and comfort from the settlement, and that Marvel’s official line about its history will come closer to acknowledging the truth about Kirby’s essential contribution to the company. I hope this will lead to more honest conversations about how Marvel Comics got made, that Kirby’s story will become an official part of Marvel’s story, and that his name will be forever attached to the company’s marquee properties, going forward. That’s my fervent hope.

The case has been long and complicated, dating back to copyright termination notices filed by the Kirbys in 2009, which sparked a suit from Marvel and a countersuit by the Kirbys. In July 2011 the US District Court for the Southern District of New York found in favor of Marvel, rejecting the Kirbys’ case. In August 2014 the Second Circuit Court of Appeals reaffirmed that decision, again handing down an opinion that favored Marvel. Last October the Second Circuit rejected a request to rehear the case, after which the Kirbys’ attorney Marc Toberoff submitted their cert petition to SCOTUS on March 21. Yet many observers felt that this would not be enough to counter the judgment of the Second Circuit; SCOTUS grants few cert petitions, and the Kirbys’  was widely seen as a gesture of last resort: a last-ditch, Hail Mary pass in spite of the fact that the matter had been firmly settled in Marvel’s favor. It appeared to many that the case was done and that the Kirbys had simply been beaten.

However, news of the cert petition reignited publicity over the case, and in May SCOTUS discussed the case in conference, after which the Court requested a response from Marvel. Then, in June, things started to happen: several important amici curiae briefs supporting the Kirbys’ petition brought high-profile attention to the case. One of these was filed on behalf of Kirby biographer Mark Evanier, Jack Kirby Collector publisher and editor John Morrow, and the PEN Center USA (a nonprofit representing diverse writers). In addition, the California Society of Entertainment Lawyers filed a brief.

Another brief that became very important for the press coverage of the  case was submitted by Bruce Lehman, former Assistant Secretary of Commerce and Director of the US Patent and Trademark Office, and an authority on intellectual property law. Lehman filed in collaboration with former US register of copyrights Ralph Oman, the Artists Rights Society, and the International Intellectual Property Institute; they were joined by the American Society of Illustrators, the National Cartoonists Society, the Association of American Editorial Cartoonists, and other organizations representing arts professionals—as well as scores of cartoonists and illustrators who also signed on.

The Hollywood Reporter‘s Eriq Gardner published an illuminating article on the Lehman and Evanier briefs, including the complete text of both, on June 19.

Another piece of big news was the brief filed by three film industry unions, SAG-AFTRA, the Directors Guild of America, and the Writers Guild of America. The unions’ support of the Kirbys’ petition made the case a Hollywood headliner. Clearly creators in many other fields besides comic books saw the ramifications of a case regarding freelance creators, work for hire law, the so-called “Instance and Expense” test invoked by the Second Circuit, and the termination rights of creators and estates. At issue were questions fundamental to IP and work for hire law. Again, Hollywood Reporter‘s Eriq Gardner spotlighted the legal implications in a helpful article, dated June 23.

Marvel, as SCOTUS requested, filed its brief in opposition to the cert petition on July 14. Marvel’s brief sought to discredit all the amici curiae briefs in support of the Kirbys. The Kirbys’ attorneys responded with a reply brief on July 29, setting the stage for a further SCOTUS conference that was to happen on Monday, Sept. 29 (tomorrow, as of this writing). The Case Page on the SCOTUS blog spells out the whole timeline from last December to now, and includes PDFs of the cert petition and all the briefs.

Marvel and the Kirbys’ eleventh-hour settlement—just as SCOTUS was poised to decide whether to take up the case—has been interpreted by some as an admission on Marvel’s part that the Kirbys’ case was stronger than they first allowed. It does seem reasonable to infer that Marvel was incented to settle before things got more complicated, or hazardous, for them. Yet the fact that the case never came to trial (the original 2011 decision was a summary judgment, not a trial verdict) makes it hard to know just what the calculations were on both sides. Interpreting the result as an unalloyed triumph or affirmation for either side would probably be too big a leap. Again, nothing is yet known publicly beyond the official joint statement: a single sentence.

News coverage all over the place hasn’t really added to the sum total of what we know. For the record, I consulted online articles from The Hollywood Reporter (Eriq Gardner again), Variety, the New York Times, the Wall Street Journal (a quick AP wire), the Los Angeles Times‘ Hero Complex blog, Deadline, and many different comics news sites, notably Comics Alliance and The Comics Reporter. It was at The Beat that I first read the news.

Ryan Carey provides a somewhat astringent (glass half empty?) analysis of what the news means over at Geeky Universe. I think he’s mistaken about fan and freelancer pressure not making a difference in the case, but, still, what he has to say is bracing and worth the read.

Me, I’d like to quote what Tom Spurgeon says in The Comics Reporter article linked above:

Exploitation can be mitigated. Better outcomes can be sought. Credit can be shared. The world doesn’t end.

But also this sobering afterthought:

Still, this wasn’t easily won; this settlement came with significant personal and professional cost spread out across generations. The negative example remains.

Damn right. And yet it feels to me as if something important and good has happened.

Some will be disappointed that Marvel v. Kirby did not get to trial and did not become the supreme test case of work for hire law that it might have; some might have preferred for the Kirby family to take the case all the way to court, so as to bring greater clarity to that kind of law, perhaps even to effect a revolution in the law. Surely some of the those entities that submitted or signed on to the amici briefs wanted to see a trial outcome that would in effect rewrite that body of law. Yet I have to believe that the family and their counsel acted wisely in negotiating the settlement, and that it will help the Kirbys—my chief concern. Congratulations to them for sticking it out and getting Marvel to the bargaining table.

I look forward to hearing more about the terms of the settlement—and, I hope, to seeing Jack Kirby’s name highlighted at Marvel from here on out!

I will need to update my Marvel v. Kirby page. I’m glad about that. 🙂